After the Lautsi Judgments the European Court of Human Rights needs to Repair its Legitimacy

On 18 March 2011, the Grand Chamber of the European Court of Human Rights handed down its judgment in the case of Lautsi v. Italy. The case concerns the practice in Italy of displaying a crucifix in every classroom in state schools. It was brought by Ms. Soile Lautsi, a Finnish national, who objected to the fact that her children were being exposed to these crucifixes in class. Ms. Lautsi argued that displaying the crucifixes was contrary to the principle of secularism, which served as the basis of the upbringing of her children.

The case had first been decided by the Second Section of the Court, which had relied on Article 2 of the First Protocol, which reads as follows:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

As the Court has acknowledged in its case law, in particular in the Kjeldsen case, this provision requires the State to respect parents’ convictions, be they religious or philosophical, when dealing with public education. On the basis of the text of the provision and the Court’s interpretation of it, the presence of crucifixes in classrooms in Italy is not problematic. Since 95 % of the Italians consider themselves to be Catholics, and therefore value the presence of crucifixes in classrooms, the Italian Government, by allowing them to be there, is respecting the religious beliefs of an overwhelming majority of Italians.

However, as the German Federal Constitutional Court did before it in the famous Crucifix judgment, the Second Section rightly acknowledged that the freedom of religion has both a positive and a negative dimension. While one has the right to believe in a particular religion, one also has the right not to believe in a religion, which includes the right not to be exposed to symbols expressing that religion. The case, therefore, represents a collision between the positive right of Italian Catholics to have crucifixes in the classrooms and the negative right of Ms. Lautsi not to have her children exposed to them. In a sense the case exemplifies a clash between the secularism which is gaining ground in northern Europe and the attachment to tradition and belief which is still very present in the south.  

The Second Section therefore rightly emphasised that respecting parents’ convictions with regard to education also means respecting minority views. Consequently, it would not have come as a surprise if the Second Section would then have offered a compromise, which would have left the crucifixes hanging in the classrooms, but would have allowed for some kind of mediation if parents would object to their presence. The system introduced in Bavaria following the Crucifix judgment could have served as a source of inspiration in this regard. However, the Second Section decided not to follow this path. It came to the conclusion that in order to respect minority views, the State has the duty to uphold confessional neutrality in public education where school attendance is compulsory. Therefore, the crucifixes had to go.

In this way the Second Section turned the meaning of Article 2 of the First Protocol on its head: it read a secularity principle into a provision which is clearly aimed at safeguarding the religious beliefs of the parents. It is like reading into the provision on the monarchy in the Dutch Constitution that The Netherlands is a republic. In addition, the religious convictions of a large majority of Italian parents were sacrificed to protect the rights of a minority.       

Not surprisingly, the judgment of the Second Section stirred up a lot of controversy. Italian Prime Minister Berlusconi heavily criticized the decision and he received the backing of political parties across the political spectrum. Churches and religious organizations across Europe rose in revolt. Within the Court itself the decision was also not universally welcomed: the judges who serve in Section Two were grilled by their colleagues over lunch. Therefore, the judgment of the Grand Chamber, which was seen by many as an opportunity to set the record straight, was eagerly awaited by court watchers and religious organisations alike.

In its judgment the Grand Chamber, by an overwhelming majority, rejected the position taken by Section Two. It came to the conclusion that the presence of crucifixes in classrooms did not constitute a violation of Article 2 of the First Protocol. While it could have easily reached this conclusion by relying on a close reading of this provision, which cannot serve as the basis for the principle of secularity, it decided instead to put its eggs in the margin of appreciation basket. The Grand Chamber emphasised the need for a wide margin of appreciation in this area, which is even amplified by the lack of consensus among the Contracting States.

Although even a wide margin of appreciation allows for European supervision, according to the Grand Chamber the Italian crucifix regime had no difficulty in overcoming this hurdle. First, it noted that a crucifix is a passive symbol. Then is laid out three contextual arguments: the crucifixes are not linked to compulsory teaching about Christianity; Italian schools tolerate symbols from other religions on their premises, like Islamic headscarves worn by pupils; and the presence of the crucifixes was not part of a proselytising campaign. Since the question was whether the crucifixes by themselves are in accordance with Article 2 of the First Protocol, these arguments are hardly convincing.

Although the judgment has to be welcomed for overturning the decision of the Second Section to sacrifice the crucifixes valued by so many Italian parents, it is still open to criticism. First, the Grand Chamber could have reached a similar result by relying on a proper interpretation of Article 2 of the First Protocol. Now an inflated construction had to be compensated by a bloated margin of appreciation. Second, the minority to which Ms. Lautsi belongs, who would like to see their negative freedom of religion protected, is left completely empty-handed. The Court could, without any difficulty, have included the need for a conciliatory mechanism to accommodate the wishes of non-believing parents. If Ms. Lautsi would find provocative the statement of the Court that through their upbringing parents can correct the negative impact the crucifixes may have on their children, she could not be blamed.

Last but not least, through these two judgments the Court has put its legitimacy on the line. Research conducted by political scientists show that, in order to maintain their institutional legitimacy, courts must do certain things, like taking decisions which are sensitive to public opinion, avoiding overt clashes with key political actors and refraining from engaging in judicial activism. The Lautsi judgments do not score high in these areas, and as a result, the Court may have lost some of its legitimacy capital, as its German counterpart did through the Crucifix case.

At first sight it looked as though the Court had learned its lesson from the fall-out from the decision of the Second Session. Thus, on the day the Grand Chamber handed down its judgment, I complimented the Court for being such a good listener in NRC Handelsblad, a Dutch daily newspaper. However, I have since been corrected by a member of the Court. Last Friday, during a symposium at the University of Amsterdam, Judge Egbert Myjer told his audience that the fact that the Grand Chamber overturned the decision of the Second Section was the result of the quality-check which is inherent to Grand Chamber referrals rather than public pressure. I hope he was only putting on a brave face and that the Court has become more receptive to its audiences, which will definitely enhance its legitimacy.

Posted by Tom Zwart